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Run, run for your life. You will believe in that solution right after your firm bears liability when you could have scampered away. At the very least, go in with an ERISA attorney so your firm can say that the attorney was calling the shots. If you can't find an attorney who is willing, what does that tell you? It has been a few days since I've read the new EPCRS but at some point no later than 1/1/2022 the IRS will allow an anonymous conference call to discuss alternatives. I forget the precise parameters but what do you have to lose if you present your alternative as a take it or leave it concept? If it is that important to you then offer to eat the EPCRS filing fee.

Are they trying to take full advantage of the transitional period? Doesn't sound like it if they are contemplating merging in the middle of 2022. Why not have Company B adopt Company A's Plan for new contributions effective 1/1/2022, simultaneously amending Company A's Plan to relax eligibility to 3 months. The asset transfer/merger can happen in Q1 2022 (or later).

Last year, they sent out notices for pre 2020 plan years using the post 2019 penalty. This was fixed at the time, but may back again. It is not that uncommon to have wrong dates on these notices, so could be either really. Agree with above, call the IRS (with a POA so you don't spend 3 hours on hold just to have them say I cant talk to without a POA)

Looks like the Notice 328 is for late Federal tax deposit penalties. Is that what's happening?

I'm outta breath from running... What happens to a troubled plan when there is no TPA to take them on?

There are lots of testing options. If you have a test that's passing, there's probably a different way you could run the test to make it fail, if you feel it's important to show a failing test result before proceeding with an -11(g) amendment. To put it another way, there's nothing that says you have to test under every possible combination of cross-testing, average comp, accrued-to-date, permitted disparity, standard interest rate and mortality tables, restructuring, permissive aggregation, disaggregation of otherwise excludable employees, and probably a handful of other testing options I'm not thinking of, and then only if every single one of those tests fails, are you allowed to proceed with the amendment.

This is how we've always done it....

Line 4?

Alas - not following the rules and getting the fidelity bond late, or not following the rules and reporting it even though it was not effective at the date of the 5500? I know, obviously both.....

It would be A because you cannot award an AP an unvested benefit in a QDRO. So AP gets $2500 and P has $2500 vested and $5k unvested. However, the QDRO could say AP gets 50% of the total (so $5k) and that would be paid from the vested source only leaving P $5k all unvested subject to future vesting. While that's not necessarily fair you could also draft one QDRO awarding AP 50% of vested ($2.5k) and reserve jurisdiction over unvested and later on enter a supplemental QDRO to capture the additional amount due AP once that part of the account vests.

I have edited this post to take into account the corrections pointed out by others, below. mike ================================================================ The confusion is due to the lack of standardized language. The OP refers to something being equal to $100,000. This something is described as "net income from self-employment". I have a suspicion the OP means "Net profit as shown on the Schedule C". With "Net profit as shown on the Schedule C" of $100,000 then the technical definition of "net income from self-employment" is $92,350 ($100,000 * .9235). If so, then the $92,350 goes into the calculation of the FICA tax adjustment but otherwise is ignored for all plan calcs. With $92,350 as the starting point, the FICA tax adjustment is $7,065. Subtracting $7,065 from the net profit leaves you with $92,935 as your starting point for all of the plan calcs you need to do (415 limit and maximum deductible). So we have two numbers that are very similar ($92,350 and $92,935) which leads to confusion. With $92,935 as your starting point for plan calcs you will find that the employer contribution is limited to $18,587 [not $15,489 as originally stated in this post] at the high end and, of course, $0 at the low end. You can't really calculate the salary deferral until you have decided on the employer contribution. But we know that the maximum salary deferral is $19,500 no matter what the employer contribution ends up being (somewhere between $0 and $18,587 [not $15,489 as originally stated in this post]). As a double check you can state your results based on the maximum employer contribution of $18,587 [not $15,489 as originally stated in this post] and maximum salary deferral of $19,500: Employer contribution: $18,587 [not $15,489 as originally stated in this post] Salary deferral: $19,500 Plan Compensation: $74,348 [not $77,446 as originally stated in this post] ($92,935 - $18,587 [not $15,489 as originally stated in this post]) Maximum annual additions: $58,000 (lesser of $74,348 [not $77,446 as originally stated in this post] [100% of comp] and $ limit of $58,000) Actual annual additions: $38,087 [not $34,989 as originally stated in this post] ($18,587 [not $15,489 as originally stated in this post] + $19,500) Maximum deductible employer contributions: $18,587 [not $15,489 as originally stated in this post] ($74,348 [not $77,446 as originally stated in this post] * 0.25 [not .2 as originally stated in this post]) Actual employer contributions: $18,587 [not $15,489 as originally stated in this post] So the determination of the actual salary deferral revolves around the employer contributions for the year. With employer contributions totaling $18,587 [not $15,489 as originally stated in this post] you have plan compensation of $74,348 [not $77,446 as originally stated in this post] and your salary deferrals for the year are $19,500 assuming a percentage election is 26.23% [not 25.2% as originally stated in this post] or more. With employer contributions totaling $0 you have plan compensation of $92,935 and your salary deferrals for the year are $19,500 assuming a percentage election is 21% or more.

Legally speaking it is my understanding there is always an estate. They just happen once you die- your stuff enters your estate regardless if there was a plan or not. A plan just defines better what an estate looks like. That might not help much if you can't find anyone who can do something with the estate. You are most likely going to need the plan lawyer to tell you what to do. I would at least start by making sure the plan says document what has done to find an heir. Try outside of the box thinking. You would be shocked how many times we made a payment because we found an obituary that named the church the funeral service happened at. So we called the clergy to ask if they knew how to contract any family members of the deceased. Most people hold a funeral at church do so at the one they attended regularly so the clergy knows the family. Most obits name all the surviving family members also. Most are online. You MIGHT be able to defend a forfeiture and reallocation if you can document a very good search but I would want the plan lawyer to make the ruling.

If it's a valid waiver, they are not a participant in the plan.

If the TPA is enrolled in some manner covered by Circular 230 he/she/they cannot prepare the form with knowingly false information without risking enrollment and other sanctions as outlined, you can read it for yourself. Even if not formally covered by 230, it's a good guideline for standards of practice. If the TPA has already been paid to prepare the 5500, they should do so with correct information as they understand it and send it to the client, client can choose to file it or not. Alternatively resign and possibly refund any pre-paid fee. If the TPA hasn't been paid and the client doesn't have money to pay the TPA, best just to resign. There is just not enough profit in any one administration engagement to justify a TPA knowingly preparing an incorrect return. If/when the SHTF the client will come back and blame the TPA for doing so.

Yes. It's a legitimate plan expense.

This is truly a hypothetical question, but comes to mind since there have been a couple of "mistake of fact" distributions recently. Suppose you have a legitimate mistake of fact contribution. In order to return it to the employer, it is supposed to be returned within 1 year. Now suppose it is past the 1 year, before it is even discovered. I believe it then needs to be allocated as an employer contribution. Other opinions? Other solutions you have used or heard of in "real life" situations? Just curious.

You can exclude HCEs from deferring prospectively, but not retroactively. 411(d)(6) prevents cutbacks of benefits already accrued, even for HCEs.